Before
the Court is Defendant Gallagher Bassett Services, Inc.'s
("Gallagher Bassett" or Defendant") Motion to
Dismiss First State Orthopaedics, P.A.'s ("FSO"
or "Plaintiff) complaint ("Complaint") and
Motion to Strike the Proposed Class Allegations. For the
reasons set forth below, Defendant's Motions will be
GRANTED.

(i)...to contest the sufficiency of the invoice's
'data elements, ' as that term is used in 19 Del. C.
§ 2322F(h), within 30 days of receipt; (ii) though
ultimately paid by Gallagher Bassett, the invoice was paid
only after the expiration of the 30-day period under section
2322F(h); and (iii) Gallagher Bassett's payment of the
invoice was unaccompanied by the statutory interest provided
under section 2322F(h).[3]

Since
June 22, 2014, Gallagher Bassett has contracted with various
Delaware workers' compensation insurers, to act "as
a third-party claims adjuster or claims administrator
[("TPA")]"[4] "with respect to claims for
workers' compensation benefits brought by FSO's
patients."[5] Such a role gave Gallagher Bassett the
authority to administer, evaluate, process, handle, pay, and
even deny workers' compensation claims for FSO's
patients by the Delaware workers' compensation
insurers.[6] FSO alleges that Gallagher Bassett acted
as an agent for the insurers, [7] and had a pecuniary interest to
reduce and minimize the costs associated with patient's
workers' compensation claims to help optimize the
financial condition of the insurers it contracted
with.[8] Plaintiff also alleges that Gallagher
Bassett was a joint venturer with "the insurers
responsible for providing workers' compensation insurance
to FSO's patients."[9]

The
Complaint alleges Gallagher Bassett routinely failed to pay
the statutory interest that accrued on claims Defendant
failed to timely contest within 30 days of receipt as well as
claims it unsuccessfully disputed in the utilization review
process allowing the 30-day deadline to pass.[10] In addition
to the remedies discussed above, FSO also seeks class
certification, and an award of declaratory relief,
compensatory and punitive damages.

Gallagher
Bassett has moved to dismiss the Complaint, asserting 19 Del.
C. § 2322F(h) of the Delaware Workers' Compensation
Act (the "Act") does not apply to Gallagher
Bassett.[11] In the event, Gallagher Bassett does
fall under the statute as an "insurance carrier, "
Defendant argues that any payment disputes by healthcare
providers must first be brought before the Industrial
Accident Board ("IAB").[12]Additionally, Gallagher
Bassett moves to strike all class allegations from the
Complaint as there is no proper basis for a class
action.[13]

II.
STANDARD OF REVIEW

In
considering the Motion to Dismiss for failure to state a
claim filed pursuant to Rule 12(b)(6), the Court must assume
the truthfulness of the complaint's well-pleaded
allegations, [14] and afford plaintiff "the benefit
of all reasonable inferences that can be drawn from [their]
pleading."[15] Certain documents that are
"integral to a plaintiffs claims.. .may be incorporated
by reference without converting the motion to a summary
judgment."[16] At this preliminary stage, dismissal
will be granted only when the Court is able to determine with
"reasonable certainty" that plaintiff would not be
entitled to relief "under any set of facts that could be
proven to support the claims asserted" in the
complaint.[17]

III.
DISCUSSION

As
briefly stated above, Gallagher Bassett seeks dismissal of
Plaintiff s claim under 19 Del. C. § 2322F(h) (the
"Prompt-Pay Statute") as well as the Plaintiffs
proposed class certification. Gallagher Bassett argues that
19 Del. C. § 2322F(h) is inapplicable as Gallagher
Bassett is neither an "employer" nor
"insurance carrier" as defined under the
statute.[18] It also argues that if the Prompt-Pay
Statute is applicable to Gallagher Bassett, the IAB must
first hear Plaintiffs claims.[19]

The
Plaintiff, in its answering brief, sets forth several
arguments for why Defendant Gallagher Bassett should be
liable for the statutory interest under 19 Del. C. §
2322F(h) to FSO and all members of the proposed class. First,
FSO contends that Gallagher Bassett falls under the broad
definition of "insurance carrier" because it
routinely evaluates, pays, and denies worker's
compensation claims on behalf of Delaware
employers.[20] Second, Plaintiff asserts that Gallagher
Bassett is liable for the statutory interest because it was
an agent for undisclosed principals.[21] Third, Plaintiff argues
that because Gallagher Bassett had a pecuniary interest, it
was a joint venturer with the undisclosed insurers and
should, therefore, be liable for statutory
interest.[22] Finally, Plaintiff urges the Court to
follow its decision in First State Orthopaedics, P.A. v.
Liberty Mut. Ins. Co., and find an implied private right
of action under Section 2322F(h).[23]

Gallagher
Bassett rejects Plaintiffs arguments and reiterates its
claims from the Motion to Dismiss that Gallagher Bassett is
not an "insurance carrier" under the Prompt-Pay
Statute and if it falls under the Prompt-Pay Statute, the
Plaintiffs claim must first go to the IAB.[24] It also
asserts that agency law is inapplicable to this statutory
claim and Plaintiffs "joint venturer" argument is
flawed.[25] The Court will first turn to the
language of the Prompt-Pay Statute to determine if it is
applicable to Gallagher Bassett. After such determination has
been made, the Court will then determine if FSO's class
action allegations should be stricken from the record.

A. THE PROMPT-PAY STATUTE

Section
2322F(h) was enacted in 2007 along with other reforms to the
Delaware Workers' Compensation Act to help create
"standards for billing and payment of health care
services...."[26] Section 2322F(h) specifically implements
prompt payment of health care expenses for non-preauthorized
care.[27] In fact, it mandates that:

[a]n employer or insurance carrier shall be required to pay a
health care invoice within 30 days of receipt of the invoice
as long as the claim contains substantially all the required
data elements necessary to adjudicate the invoice, unless the
invoice is contested in good faith. If the contested invoice
pertains to an acknowledged compensable claim and the denial
is based upon compliance with the health care payment system
and/or health care practice guidelines, it shall be referred
to utilization review. Any such referral to utilization
review shall be made within 15 days of denial. Unpaid
invoices shall incur interest at a rate of 1 % per month
payable to the provider. A provider shall not hold an
employee liable for costs related to nondisputed services for
a compensable injury and shall not bill or attempt to recover
from the employee the difference between the provider's
charge and the amount paid by the employer or insurance
carrier on a compensable injury.[28]

Thus
the viability of Plaintiffs claim against Defendant hinges on
19 Del. C. § 2322F(h) and whether Gallagher Bassett is
considered an "employer" or "insurance
carrier" under the Act.[29] Such a determination requires
the Court to engage in statutory interpretation.

"The
goal of statutory construction is to determine and give
effect to legislative intent."[30] A court must first
determine if the statute is ambiguous or not. If the statute
is found to be clear and unambiguous, then the plain meaning
of the statutory language controls.[31] "The fact that the
parties disagree about the meaning of the statute does not
create ambiguity."[32] Rather, a statute is ambiguous only
if it is reasonably susceptible to different interpretations,
[33]
or "if a literal reading of the statute would lead to an
unreasonable or absurd result not contemplated by the
legislature."[34] "When confronting an ambiguous
statute, a court should construe it 'in a way that will
promote its apparent purpose and harmonize [it] with other
statutes' within the statutory
scheme."[35]

Section
2322F(h) imposes statutory interest as a penalty for
insurance carriers and/or employers who fail to timely pay
workers' compensation claims. The penalty is specifically
limited to the two terms "employer" and
"insurance carrier" which are defined in Section
2301 of the Act. However, for the purposes of this Opinion,
the Court will only focus on the term "insurance
carrier, " since there is no dispute that the Defendant
is not an employer under the Statute.

An
"insurance carrier" is broadly defined as "any
insurance corporation, mutual association or company or
interinsurance exchange which insures employers against
liability under this chapter or against liability at common
law for accidental injuries to employees."[36] Broken down,
an insurance carrier must be an entity that is in the
business of providing insurance. Although the Act does not
define the term "insurance, " a clear definition
can be found in the Delaware Insurance Code as: "a
contract whereby one undertakes to pay or indemnify another
as to loss from certain specified contingencies or perils,
called 'risks, ' or to pay or grant a specified
amount or determinable benefit in connection with
ascertainable risk contingencies or to act as
surety."[37]

In the
instant case, the Court finds the statutory language to be
unambiguous. The Workers' Compensation Act clearly
defines the terms "insurance carrier" and
"employer, " making it unsusceptible to different
interpretations. FSO argues that Gallagher Bassett engages in
the business of insurance by processing and paying valid
claims. While they may process claims, such an attempt to
rewrite the statute to include TPAs like Gallagher Bassett is
flawed for several reasons.

First,
such an interpretation would be contrary to the definition
itself. TPAs like Gallagher Bassett do not provide insurance
for employers against liability. TPAs contract with insurers
to process, determine and pay or deny workers'
compensation benefits. They do take on some functions
traditionally performed by the insurance carrier which have
been delegated to them, but the TPAs do not engage in the
actual writing or insuring of employers and their employees.
Plaintiff tries to use the definition of insurance to argue
that Gallagher Bassett handled one of "the most critical
aspect[s] of the business of insurance... [by] processing,
evaluating and paying insurance benefits [to FSO and those
similarly situated]."[38] And because of its
entanglement in the insurance process, Gallagher Bassett
should be considered an "insurance carrier."

The
Court agrees with the Plaintiff, that Gallagher Bassett's
role is more than purely administrative. The Defendant even
admits that it determines if a payment should be made and
that requires the insurer to delegate some of its power and
authority.[39] However, because the statute is
unambiguous, the Court must only rely on the plain language
of the Act and Defendant Gallagher Bassett is simply not an
insurance carrier. It has never provided the insurance to the
employers, nor any type of indemnification. More importantly,
Gallagher Bassett paid the insurance proceeds directly from
bank accounts that were funded by the underlying employer or
insurance carriers, never from its own funds.[40] The Court
finds no convincing evidence to suggest that Gallagher
Bassett is an insurance carrier as defined in Section 2301.

Further,
there is no clear legislative history or intent to suggest
that the General Assembly meant to include TPAs. The Act has
been amended on many occasions to reflect the current intent
of the General Assembly and to ensure the Act is effectuating
the original purpose of workers' compensation benefits.
In various amendments since 2007, the definition Section 2301
and Section 2322F of the Act were amended, and none of these
amendments contemplated TPAs. In fact, the most recent
amendment in 2015, which occurred after Gallagher Bassett had
already assumed the role as a TPA for insurers, did not
propose a change in the definition of an "insurance
carrier" to broaden the scope of statutory
interest.[41] Because of the plain language of the Act
and a lack of legislative intent to suggest otherwise, the
Court cannot extend the scope of the definition. That is a
job for the legislature. If it is necessary in order to
continue to achieve the goals of the Act, especially if the
insurance carriers are not making the ultimate decision to
pay or deny the workers' compensation claims, then it is
a legislative remedy that must be pursued and not a rewrite
by the judiciary.

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